Citation Nr: 1302338
Decision Date: 01/22/13 Archive Date: 01/31/13
DOCKET NO. 02-06 874A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for migraine headaches, to include on a secondary basis.
2. Entitlement to an increased disability rating in excess of 10 percent for a right ankle disability.
3. Entitlement to an initial disability rating in excess of 10 percent for residuals of a right knee injury.
4. Entitlement to an initial disability rating in excess of 10 percent for residuals of a left knee injury.
REPRESENTATION
Appellant represented by: Barbara J. Cook, Attorney at law
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Carole Kammel, Counsel
INTRODUCTION
The Veteran served on active duty from April 1985 to May 1995.
This matter comes before the Board of Veterans' Appeals (Board) from a July 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By that rating action, the RO, in part, granted service connection for residuals of right and left knee injuries; each knee was assigned an initial noncompensable disability rating, effective August 30, 2000--the date VA received the Veteran's initial claim for compensation for these disabilities. The Veteran appealed this rating action to the Board.
By a January 2004 rating decision, the RO assigned initial 10 percent disability ratings to the service-connected right and left knee injuries, effective August 30, 2000. As the 10 percent ratings do not represent the highest possible benefit for each knee disability, the initial rating claims with respect to the left and right knees remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993).
In February 2003, the Veteran testified at a hearing before a Decision Review Officer (RO hearing). A copy of the hearing transcript is associated with the record.
This appeal also stems from an October 2007 rating action. By that rating action, the RO, in part, denied service connection for migraine headaches. The RO also assigned a 10 percent disability rating to the service-connected right ankle injury, effective December 1, 2006--the date VA received the Veteran's claim for increased compensation for this disability. The Veteran appealed these determinations to the Board.
In March 2008, the Board, in part, denied initial disability ratings in excess of 10 percent for residuals of right and left knee injuries. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2010 Memorandum Decision, which became final pursuant to an October 2010 Mandate, the Court vacated and remanded the Board's decisions regarding the Veteran's claims for increased initial disability ratings for his right and left knee disabilities. In May 2011, the Board remanded the above-cited initial rating claims to the RO; specifically, for the RO to schedule the Veteran for a VA examination to determine the current severity of his right and left knee disabilities. VA examined the Veteran in August 2011. A copy of the examination report has been associated with the claims file.
In June 2012, the Veteran testified at a videoconference hearing before the undersigned at the Montgomery, Alabama RO. His attorney was present at the Cincinnati, Ohio RO. A copy of the hearing transcript has been associated with the claims file. The undersigned held the record open 60 days after the close of the hearing to allow the Veteran to submit additional evidence in support of his claims. In August 2012, the Board received personnel records from the Veteran's employer, The United States Postal Service, VA treatment reports, dated from September 2011 to January 2012, and medical reports, prepared by Orthopedic Specialists, dated from 2004 to 2010. As the Veteran's attorney waived initial RO consideration of this evidence, a remand to have the RO consider this evidence in the first instance is not necessary. 38 C.F.R. § 20.1304 (2011). The Board finds, however, that a remand is necessary with respect to the issues on appeal for the reasons outlined below.
In an August 2012 letter to VA, the Veteran's attorney requested an extension of time--until October 8, 2012--to submit additional evidence in support of the current appeal. In a September 2012 letter from the Board to the Veteran's attorney, she was informed that the undersigned had granted her request. In response, the Veteran's attorney submitted an August 2006 private magnetic resonance imaging scan (MRI) of the Veteran's brain showing that he had migraine headaches--a fact that was already of record. August 2006 X-ray interpretations of the Veteran's left shoulder were also received. The Veteran's left shoulder is not the subject of the instant appeal. Thus, as the above-cited evidence is either duplicative of that already of record or is not relevant to any issues on appeal, a remand to have the RO initially consider this evidence is not necessary. 38 C.F.R. § 20.1304 (2011). A remand is, however, necessary for other reasons, as outlined in the directives below.
The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required on his part.
REMAND
The Board finds that prior to further appellate review of the claims on appeal additional substantive and procedural development is necessary; specifically, to schedule the Veteran for VA examinations to determine the etiology of his migraine headaches and current severity of his right ankle disability; obtain outstanding VA treatment reports; and, provide him with notice in compliance with the Veterans Claims Assistance Act of 2000 regarding his claim for service connection for migraine headaches, to include on a secondary basis, to include aggravation.
(I) Substantive Development
(a) VA examinations
(i) Migraine Headaches
The Veteran contends that he currently has migraine headaches that are the result of an in-service motor vehicle accident. He maintains that he did not initially associate his headaches with the in-service accident, but thought that they were just "normal headaches." (See June 2012 hearing transcript (T.) at page (pg.) 20)). The Veteran maintains that he initially sought treatment for his headaches from a Dr. W., and at the VA beginning in 2000. Id at pages (pgs.) 26-28.
The Veteran's service treatment records (STRs) show that he was hit by a motor vehicle traveling at 45 miles per hour as he was trying to exit his motor vehicle in February 1993. At that time, the Veteran described having a history of "'normal HA's,'" but denied having any headaches at the time of the accident. The remainder of the Veteran's service treatment records (STRs) are devoid of any further complaints of headaches, to include, but not limited to, when he was involved in a second motor vehicle accident in August 1993.
Post-service VA and private treatment records, dating from 2001 to 2012 are of record. In January 2002, the Veteran was seen at a VA clinic and complained of having had headaches for the previous four (4) days. The examining clinician diagnosed the Veteran with an upper respiratory infection. A June 2005 VA treatment report contains an impression of probable common migraines. When seen by C. F., M. D., in October 2006, the Veteran reported that he had developed headaches over the previous two (2) to three (3) years (i.e., 2003-2004). Dr. C. F. entered an assessment of chronic headaches that were most likely migraines. In view of the Veteran's competent lay testimony regarding in-service headaches and in-service evidence of a motor vehicle accident, the Board finds that a VA examination is necessary to determine the etiology of the Veteran's migraine headaches. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006);
(ii) Right Ankle Disability
The Veteran contends that his right ankle disability is more severely disabling than that reflected by the currently assigned 10 percent disability rating, primarily due to constant pain and bi-monthly swelling episodes. (T. at pg. 17.) The Veteran also maintains that his right ankle makes a "clicking" sound when it rolls. Id. at pg. 16.
VA last examined the Veteran's right ankle in August 2007. (See August 2007 VA orthopedic examination report). In view of the passage of time since VA last examined the Veteran in August 2007, which is over five (5) years ago, in conjunction with his testimony that he has continued to experience constant pain and bi-monthly swelling of the right ankle, the Board finds that a new VA joints examination is required to assess the current level of severity of his right ankle disability. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (Court determined contemporaneous examination required because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); VAOPGCPREC 11-95 (April 7, 1995); Green v. Derwinski, 1 Vet. App. 121 (1991).
(b) Outstanding VA treatment records
During the June 2012 hearing, the Veteran testified that from September 2011, he had continued to seek regular treatment for all of the disabilities on appeal. The Board notes that the Veteran's recent VA treatment has been at the VA Medical Center (VAMC) in Birmingham, Alabama. Treatment reports from this VAMC, dated from September 2011 to January 2012, are of record, but primarily reflect treatment for unrelated disabilities. Thus, as there are possible further VA treatment records that might contain information as to the etiology of the Veteran's migraine headaches and current severity of his right ankle and left and right knee disabilities, they should be obtained on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R 3.159(c) (2011).
II. Procedural Development
On VA Form 21-4138, Statement in Support of Claim, received by the RO in October 2007, the Veteran requested to amend his claim for service connection for migraine headaches to include as secondary to a cervical spine condition, a disability for which service connection has not been established. Separate theories in support of a claim for a particular disability are to be adjudicated under one claim. See Robinson v. Mansfield, 21 Vet. App. 545, 550-51 (2008), citing, Bingham v. Principi, 421 F.3d. 1346, 1349 (Fed. Cir. 2005). The Veteran has not been apprised of the information and evidence necessary to substantiate his claim for service connection for migraine headaches on a secondary basis, to include by aggravation. The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 (2012), which pertains to secondary service connection, was amended to implement the decision in Allen v. Principi, 7 Vet. App. 439 (1995), which addressed the subject of the granting of service connection for the aggravation of a non-service-connected condition by a service-connected condition. Accordingly, upon remand, the Veteran should be notified of the information and evidence not of record that is necessary to substantiate his claim for service-connection for migraine headaches on a secondary basis.
Accordingly, the case is REMANDED to the RO for the following action:
1. Obtain all additional relevant outpatient reports of the Veteran for his migraine headaches and right ankle and right and left knee disabilities from the VAMC in Birmingham, Alabama, dated from January 2012 to the present. All records/responses received should be associated with the claims file.
In requesting these records, the RO's efforts to obtain them must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by the Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012).
The Veteran should also be afforded the opportunity to submit any additional relevant or updated private treatment records or, in the alternative, submit signed authorizations to permit VA to request such records. The RO should take appropriate action upon receipt of any completed authorization forms.
2. Schedule the Veteran for an appropriate VA examination to determine the etiology of his current migraines or headache disability. All indicated tests and studies should be conducted. The claims folder must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum.
The examiner should note the Veteran's reports of having developed headaches as a result of a 1993 in-service motor vehicle accident.
The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any current migraine or headache disability had its onset in service, or is otherwise the result of a disease or injury in service, including the reported in-service February 1993 motor vehicle accident.
The examiner must provide a rationale for the opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.
The absence of evidence of treatment for headaches related to an in-service motor vehicle accident in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports, including those of in-service headaches and a continuity of symptomatology, must be acknowledged and considered in formulating any opinions.
If the examiner rejects the Veteran's reports/history, the examiner must provide a reason for doing so.
3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his right ankle disorder.
The following considerations will govern the examination:
a. The claims file, including all medical records obtained, must be reviewed by the examiner. In addition to the specific directive of addressing the evidence of record as noted below, the examiner must acknowledge receipt and review of the claims file.
b. In reaching all conclusions, the examiner must identify and explain the medical basis or bases for the conclusion, with identification of the evidence of record relied upon in reaching the conclusion. In particular:
The examiner should determine all symptomatology associated with the service-connected right ankle sprain residuals, to include any limitation of motion. The examiner should also characterize the degree of any limitation of motion as marked or moderate.
The examiner should also answer in the affirmative or negative in response to the following questions:
(1) Is there any evidence of ankylosis of the right ankle in plantar flexion less than 30 degrees, between 30 and 40 degrees, or in dorsiflexion between zero and 10 degrees?;
(2) Is there evidence of ankylosis of the subastragalar or tarsal joint in good or poor (specify which) weight-bearing position?
(3) Is there evidence of malunion of the os calcis or astragalus with moderate or marked (specify which) deformity?
The examiner should also determine whether the Veteran's right ankle disorder is manifested by weakened movement, excess fatigability, or incoordination. These determinations should be expressed in terms of the additional range-of-motion loss due to any weakened movement, excess fatigability, pain, flare-ups or incoordination of the right ankle, expressed in degrees, if possible.
The examiner must provide a rationale for his or her opinion in a typewritten report.
4. Send the Veteran a Veterans Claims Assistance Act of 2000 notice letter that informs him of the information and evidence not of record that is necessary to substantiate his claim for service connection for migraine headaches on a secondary basis, to include aggravation. This notice must also inform the Veteran of which information and evidence, if any, that he is to provide and which information and evidence, if any, that VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a) (West 2002) 38 C.F.R. § 3.159 (2012).
5. After completion of the above and any additional development deemed necessary, the RO must readjudicate the issue of entitlement to service connection for migraine headaches, to include on a secondary basis. The RO's readjudication of the claims of entitlement to an increased disability rating in excess of 10 percent for a right ankle disability and entitlement to initial disability ratings in excess of 10 percent for right and left knee disabilities should include consideration of any additional evidence added to the record assembled for appellate review and whether "staged ratings" (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007) and Fenderson v. West, 12 Vet. App. 119, 126-27 (1999), are warranted.
If the above-cited service connection and increased and initial evaluation claims are denied, the RO will issue a Supplemental Statement of the Case to the Veteran and his attorney and provide them with an opportunity to respond, before the case is returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).